On 14 and 15 December 2015 I heard two applications in the present action, which is currently listed for trial in a window between 5 and 11 April 2016 with a time estimate of 12 days. Each application is made by the second defendant, Michael Haringman, who holds office as one of the protectors (or purported protectors) of the two settlements with which the action is concerned, the Manny and Brigitta Davidson Discretionary Settlements ("the Settlements") which were originally established on 30 March 1967. By his first application, dated 21 July 2015, Mr Haringman asks for permission to re-amend his defence and bring a counterclaim, in the form of a draft pleading annexed to his application notice. By his second application, dated 19 November 2015, he seeks specific disclosure of certain categories of documents from the fourth, fifth and sixth defendants, who are the present trustees ("the Trustees") of the Settlements.

The claimants, to whom I will refer as Gerald and Maxine, are the only children of Manny and his wife Brigitta Davidson ("Brigitta"). Maxine was born in December 1958, and Gerald in April 1961, so they are now aged 57 and 54 respectively. Each of them also has two sons now in their twenties, Jack and Isaac Davidson in the case of Gerald, and Toby and Douglas Kay in the case of Maxine. I hope all members of the family will forgive me if, for convenience, I refer to them in this judgment by their first names only.

Most unfortunately, relations between the settlors and their children broke down, it would seem irretrievably, in 2013. The ensuing feud has attracted a good deal of publicity, some of it self-inflicted. For example, Manny is on record as having said in an interview with a Sunday newspaper that he now regrets having ever established the Settlements. Views and positions have become polarised, and the Trustees and protectors of the Settlements have found themselves caught up in the dispute. That is the regrettable background to the present proceedings, in which Gerald and Maxine (who are the principal beneficiaries under the Settlements) challenge the validity of the protectoral regime, which was first introduced by deeds of appointment in 2003. By their particulars of claim dated 11 February 2014, they seek a declaration that the 2003 appointments are void, or should be set aside; alternatively, a declaration that the appointments as protectors of the first and/or second defendants are void, or should be set aside; and in the further alternative, an order under the inherent jurisdiction of the court removing the first and second defendants as protectors. The first defendant, Roger Seelig, resigned as a protector, in circumstances which I will relate, and on 17 February 2015 a consent order was made compromising the claim for his removal. Mr Haringman is therefore the only individual protector whose removal is now sought by the claimants.

"9. I wake up each day hoping that Mr Haringman will act properly and leave Maxine and me and our advisors to involve ourselves in a trustee and protector review driven by our own and our families' best interests and untainted by our terrible feud with our parents. As Maxine has explained, the trustees have said that they will retire if that will help matters, but we have asked them to remain at least until Mr Haringman, who we regard as a puppet of our father and who has no interest in our happiness, has disengaged or been removed. Mr Haringman on the other hand clings to his purported office, now even seeking to widen these proceedings."

(i) The Trustees (being not less than two in number) may raise the whole or any part or parts of the vested contingent or presumptive share in the Trust Fund of either of the children of the Settlor who have attained the age of 25 years and pay or apply the same or transfer the same in specie to or for the advancement education or benefit of such child in such manner as the Trustees may think fit freed and discharged from the trusts hereof."

(a) the overriding power of appointment vested in the Trustees was now exercisable only "with the consent of the Protector" (clause 2(1));

(b) by virtue of clause 9, the appointment was made revocable before the Appointed Day, but only with the consent of both the Trustees and the Protector;

(c) the provisions relating to the trusteeship in the first schedule conferred the power of appointing replacement or additional trustees (as before) on each Settlor during his or her lifetime, and then on the survivor of them, but after that on the Protector; and

(d) paragraph 6 of schedule 1 empowered the Protector "at any time by written notice to remove any Trustee from office with or without cause", provided that following any exercise of this power there should be at least the minimum number of trustees (two in the case of individual trustees, and one in the case of a corporate trustee). It should be noted that this power was exercisable by the Protector alone, and not by the Settlors during their lifetimes.

"where two persons are occupying the office of Protector of this deed the powers conferred on the Protector by the provisions of this deed shall be exercised by such persons jointly only (and not severally) but where more than two persons are occupying such office such powers may be exercised by a majority."

Paragraphs 20 and 21 then challenge the subsequent appointments of Mr Haringman and Mr Seelig as frauds on the powers of appointment of further protectors in the 2003 Deeds. It is again alleged that these appointments were inappropriately motivated by a slavish desire to satisfy Manny's wishes to obtain further control over the Settlements. It is also said that both Mr Seelig and Mr Haringman were unsuitable on personal grounds to act as protectors. One of the allegations against Mr Seelig was that he had accepted valuable gifts from Manny, including £1 million described by Manny himself as a "bung" for Mr Seelig.

Further to our protracted discussions on the level of compensation for us in respect of the above exceptional matter namely the sale for £164 million of the Trust's shares in B L Davidson, I am pleased that a mutually satisfactory compromise has been reached.

We have accepted that an appropriate figure for our efforts in helping to bring the transaction to a most satisfactory solution after a very tortuous 18 months period would be £1,600,000. During this time you will recall we were involved in very extensive discussions with the Trust's taxation and legal advisors including of course Messrs Slaughter & May. You have asked me for remittance instructions for this payment.

For domestic housekeeping reasons it would be appreciated if you would be good enough to arrange for the transfer to be made to our "off balance-sheet" Foundation.

The Foundation's details are as follows:-

The Regina Foundation

LGT Bank in Liechtenstein

Vaduz

[An IBAN number was then given]"

It has since transpired that the Regina Foundation is in fact based in Panama. Receipt of the letter, I should add, is firmly denied by the claimants.

"In fact, and despite appearances, this was not a trustee fee, but a payment to a Liechtenstein Foundation, the Regina Foundation, established for Mr Seelig's benefit. The Regina Foundation was, as I understand it, a structure through which it would be advantageous for monies to be made available to Mr Seelig."

Mr Ledger exhibited a bank statement and internal ledger for Manny's Settlement, which showed £1.6 million entering and then leaving the bank account, described in the ledger as "Fee to Ian Ledger". The payment was debited to an income account holding undistributed income for the claimants, whose distributed income was at that date managed by Manny on their behalf under powers of attorney. Mr Ledger's evidence is that the payment was not a fee to him, although described as such in the books of the trust, but rather "enured in the Regina Foundation for the benefit of Mr Seelig".

"94. As I have explained, I do not believe that I have done anything that disqualifies me from continuing to act as a protector of the Trusts. Equally, however, I do not have any desire to continue to act as a protector in the face of the hostility that Gerald and Maxine have shown to me. I hope that it will be possible to resolve this dispute and put the Trusts in an appropriate state so that I can resign without the need for these proceedings to go before the Court.

95. If that does not prove possible, the question of my removal, and any conditions attached, will be a matter for the Court. I do not wish to trespass on the Court's discretion as to the form of any order that it may make. However, I am concerned that if I am simply removed from office this may leave the Trusts in an inappropriate state.

96. If I am simply removed as a protector, the current trustees will continue in office. For the reasons set out above I am concerned that they may not be appropriate persons to act as trustees of the Trusts. In addition, the only protector in office will be Promenade, which is controlled by the trustees' legal advisors. Promenade's inability to exercise independent oversight over the trustees as a result of the conflicts of interest between it, the trustees and [Wiggin] was confirmed by its letter of 22 April 2015 (see paragraphs 64 to 67 above).

97. As a result, I respectfully submit that, if the Court does see fit to remove me as a protector, it may wish to consider what other changes (if any) should also be made to the trusteeship and/or the protectorate in order to protect all the beneficiaries, and future beneficiaries, of the Trusts."

"Whether … [Mr Haringman] should be removed by the Court as Protector of the Trusts by reason of his conduct since taking office and in particular since Macfarlanes' letters … dated 18 November 2013 and events thereafter and (if so) on what terms, if any, (whether as to the future of the protectorate and/or the trusteeships of the Trusts or otherwise) [Mr Haringman] should be removed."

On 18 June 2015, this formulation was agreed by the claimants, but on 19 June the Trustees objected to it on the basis that Mr Haringman had not pleaded any positive case that the Trustees (or some of them) should be removed. They said that, if they had been aware this was Mr Haringman's case, they would have submitted evidence to deal with it, as no doubt would the claimants. There had been no indication of Mr Haringman's intention to raise this issue until service of his witness statement. The Trustees therefore refused to agree to a list of issues which included a reference to the change of composition of the trusteeship. If that was to be part of Mr Haringman's case, then it should be properly pleaded, and the claimants and the Trustees could respond accordingly.

"42. The 2nd Defendant will contend that on the grounds set out below the current administration of the Trusts is unsatisfactory and that the Court will need to consider as part of the issues raised in these proceedings whether and, if so what, orders for the future good administration of the Trusts should be made. The 2nd Defendant will contend that the future good administration of the Trusts requires all of the following:

(a) the Trustees be removed as trustees of the Trusts;

(b) an offshore trust company be appointed as trustee of each of the Trusts in their place;

(c) Promenade be removed as a protector of the Trusts;

(d) two individuals be appointed as protectors of each of the Trusts;

(e) the Trustees produce to the protectors trust accounts, minutes of meetings and such other documents and information as the protectors may reasonably require in order to perform their functions as protectors;

(f) the powers of Mr and Mrs Davidson to appoint trustees of the Trusts be treated as no longer exercisable.

43. The 2nd Defendant has no wish to remain a protector of the Trusts but is unwilling to resign as protector unless

(a) the Court has had the opportunity of considering whether, and if so what, orders should be made for the future good administration of the Trusts; or

(b) satisfactory arrangements have been made in the meantime for the future good administration of the Trusts on the lines set out in paragraph 42 above.

44. The 2nd Defendant will further contend that even if, contrary to his contentions, it be held that there are grounds for his removal from office, he should not be removed or his removal should not take effect without the Court considering whether, and if so what, other orders should be made for the future good administration of the Trusts or without satisfactory arrangements for the future administration of the Trusts on the lines set out in paragraph 42 above having been put in place in the meantime."

(a) an order under section 41 of the Trustee Act 1925 and/or under the inherent jurisdiction of the court, appointing new trustees of the Settlements in place of the existing trustees;

(b) an order under the inherent jurisdiction of the court appointing two named individuals as joint protectors of each Settlement in place of Promenade; and

(c) an order under section 57 of the Trustee Act 1925 and/or under the inherent jurisdiction that the provisions of the first and second schedules to each of the 2003 Deeds shall "take effect as if the powers vested in Mr and Mrs Davidson of appointing new trustees of each of the Trusts were no longer exercisable".

(a) the removal by the Trustees of Manny from his role in the administration of the trusts in 2013 showed "very poor judgment and/or that they were acting at the behest of the Claimants";

(b) the Trustees showed a similar lack of judgment and/or independence in failing to make arrangements for Manny's replacement, "thereby creating a hiatus in the proper management of the Trusts";

(c) the Trustees have failed to obtain and consider proper advice in relation to the property portfolio (some purported particulars are then given);

(d) GTC and Mr Ledger wrongfully misrepresented the true nature of the payments of £1.6 million made from the trusts to Mr Seelig and GTC, when the payment was in fact made to the Regina Foundation for the benefit of Mr Seelig and was administered (in return for fees) by GTC;

(e) the Trustees also wrongfully made false ledger entries in relation to the above payment; and

(f) GTC wrongfully received the sum of £25,000 for its role in relation to the Regina Foundation.

(a) Mr Haringman had no standing to seek the relief claimed, and the court would have no jurisdiction to grant part of the relief (namely the removal of each Settlor's power of appointing new trustees);

(b) the proposed amendments did not arise out of the matters already pleaded, and instead sought to alter and broaden the scope of the proceedings;

(c) the application was made far too late, after close of pleadings, disclosure and exchange of witness statements; and

(d) if it were granted, the trial date might well be jeopardised.

The letter also made clear that the factual basis of most of Mr Haringman's complaints was not accepted by the Trustees. Further, since the application was said to raise fundamental issues of trust law, it was proposed that the application be adjourned to be heard by a judge rather than a master.

"38. Drawing these authorities together, the relevant principles can be stated simply as follows:

(a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;

(b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponents and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;

(c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;

(d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;

(e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

(f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;

(g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court … "

"72. As the court said [in the Worldwide case, [1998] CA Transcript No. 1835], it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.

73. A point which also seems to me to be highly pertinent is that, if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules."

"Lateness is not an absolute but a relative concept. As Mr Randall put it, a tightly focused, properly explained and fully particularised short amendment in August may not be too late, whereas a lengthy, ill-defined, unfocused and unexplained amendment proffered in the previous March may be too late. It all depends upon a careful review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of its consequences in terms of work wasted and consequential work to be done."

Hague was a case of late, rather than very late, amendments, because no trial date had yet been fixed when the application was considered by the judge, although the litigation already had a long and tangled history. I certainly do not read the observations of Briggs LJ as casting any doubt on the approach to be adopted to very late amendments, of which he said at [32] that "the risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be heavily loaded against the grant of permission".

In the light of these principles, counsel for the Trustees and the claimants submitted, and I would accept, that the proposed amendments must be characterised as very late. I am satisfied there is no realistic way in which the trial date could have been held, even if permission to amend had been granted at the conclusion of the hearing on 15 December 2015. The amendments raise significant new issues about the present, past and future administration of the trusts, including in particular the allegations of poor judgment and lack of independence on the part of the Trustees in relation to Manny's removal from his previous role in the administration of the trusts, and the allegations of subsequent mismanagement and failure to obtain proper professional advice by the Trustees in relation to the £400 million property portfolio. Furthermore, the allegations pleaded in paragraph 45 of the draft re-amended defence are in crucial respects scanty and unparticularised, as Mr Taube QC convincingly showed in his oral submissions. For example, what factors are relied upon as showing "poor judgment" on the part of the Trustees, or that they acted "at the behest of" the claimants? The complaints of mismanagement of the property portfolio appear to be based on little more than the refusal of the Trustees to provide detailed information to Mr Haringman, with next to nothing in the way of particularity, and no apparent recognition of the fact that an obvious explanation for the Trustees' conduct may have been that Mr Haringman's role as protector gave him no right to interfere in matters of investment and asset management, combined with a probably justified apprehension that any information supplied to him would be passed straight back to Manny.

In a similar way, the proposal to remove the Settlors' powers to appoint new trustees is plainly a matter of immediate concern to both of them. The Settlors are represented by Clifford Chance, who on 9 December 2015 wrote to the solicitors for the other parties setting out their clients' position. The letter said that the application to amend raised two issues upon which the views of Manny and Brigitta were relevant, and in relation to which they ought to be entitled to be heard if permission to amend were granted, namely (a) the replacement of the existing Trustees and the appointment of a new trustee or trustees, and (b) the removal of their powers as Settlors to appoint trustees under the 2003 Deeds. These views were then elaborated, and the letter ended by saying that, if it were necessary for the court to review or consider removing their powers of appointment, they would wish to have an opportunity to respond and meet any criticisms which had been made of them. If they were to be joined as parties, confirmation was given that they were able and willing to comply with any reasonable deadline for the submission of evidence, once they had had the opportunity to consider the materials filed in the proceedings. It was said this would ensure that the existing trial date could safely be maintained. I accept that this may have been a realistic ambition if the joinder of the Settlors were the only new issue raised by the amendments; but in view of all the other complications which I have mentioned, this is to my mind yet a further reason for concluding that the trial date could not have been maintained if the amendments were allowed.

"It would obviously be pointless to allow an amendment only to have the amended claim dismissed summarily on the ground that it has no real prospect of success."

Moreover, the question of lateness cannot be wholly divorced from the evaluation of prospects of success. In the same case, Lewison J cited at [59] the following observations of Rix LJ in Savings & Investment Bank Ltd v Fincken[2003] EWCA Civ 1630, [2004] 1 WLR 667, at [76]:

"Ms Gloster submits that it is enough that these amendments have some prospect of success. That may be a suitable test where an amendment comes at a reasonably early stage of proceedings. After all, if any pleading whether by amendment or not, cannot meet the test of some real prospect of success, it is in danger of being struck out. In my judgment, however, the proper rule or guideline calls for a sliding scale: the later the amendment, the more it may require to commend it."

"(1) An order under this Act for the appointment of a new trustee or concerning any interest in land, stock, or thing in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock, or thing in action, whether under disability or not, or on the application of any person duly appointed trustee thereof."

Mr Taube submits, and I agree, that it is implicit in this subsection that nobody other than a trustee or beneficiary has standing to seek the appointment of new trustees under the 1925 Act. Furthermore, since the protectors currently have no power to appoint new trustees of the Settlements, they would have no standing (even acting together) to seek directions or surrender their discretion to the court.